Enter your email to subscribe:

For those of you who have not already figured out exactly how land use planning officials are expected to proceed in the wake of the U.S. Supreme Court's 2011 decision in Koontz v. St. Johns River Water Management District, Lee Fennell (Chicago) and Eduardo Peñalver (Cornell) have posted Exactions Creep, __ Sup. Ct. Rev. ___ (forthcoming). Rather than deny that the Court has aggravated the uncertainty faced by local governments, Lee and Eduardo explore the nature of the confusion in the Court's exactions jurisprudence and call for a significant revision. Here's the abstract:

How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.

For my last guest post this month, I want to return to my primary area of research to date: American Indian land tenure. As I’ve written about here already, one of my primary interests is in thinking broadly about the many varied factors that influence landowners’ decision-making about how they use their lands. Our essential land tenure institutions are foundational in this sense and directly impact land use decision-making before anything like zoning or other direct regulation of land use even has a chance to take effect. Nowhere is the influence of the design of foundational property rights more apparent than in the land tenure relationships in the modern American Indian reservation, where significant swaths of Indian-owned lands are currently not used by Indian landowners themselves but instead sit idle or are leased to non-Indian users. In fact, I have a hard time imagining a property system better designed to discourage Indian prosperity on Indian land than the top-down system of property imposed on indigenous people in this country today.

In this post, I want to give at least an overview of some of what I think are the most important and influential aspects of American Indian land tenure and then talk just a bit about why I think further scholarly engagement in this arena would be incredibly valuable in a range of settings.

I. The Indian Land Tenure Challenge

To start, I appreciate that there is a wide spectrum of knowledge regarding the nuances of modern American Indian land tenure. For some of us, it’s just a mystery how land is owned and held within reservation boundaries. For others, the system is so complex that once we start to study it at all, conversations and work regarding indigenous land rights devolve into a level of generality that isn’t as productive as it could be. Thus, a significant part of my current research agenda is trying to do the deep work required to develop a really rigorous understanding of the modern property rights framework within this very complex reservation setting. This post won’t be able to do all of this work justice. Nonetheless, here is a brief overview.

Two of the biggest and most widely recognized challenges for Indian landowners are the federal trust status on many Indian-owned lands and the fractionation (or extreme co-ownership) conditions within many of those same properties.

Many, but not all, Indian-owned lands within federal Indian reservations are held in a special trust status over which the federal government acts as trustee for the benefit of the individual or tribal landowner. This trust status’s history is complex, but the important point for this purpose is that the trust status has been extended indefinitely and, to many eyes, appears to be perpetual.

This federal trust status certainly has some legal advantages—as evidenced, for example, by ongoing efforts by many Indian tribes to have additional lands taken into trust. The primary benefits include cementing a stronger case for exclusive federal/tribal (as opposed to state) jurisdiction over the space and also clarifying that state property taxes may not be imposed on that trust land. (The property tax issue is not quite that black and white. Many tribes still make special payments in lieu of taxes to state and local government in exchange for services and to help eliminate conflicts over fee-to-trust conversions.)

The trust status, however, also has significant disadvantages for Indian landowners. It is restrictive and extremely bureaucratic. The federal government exercises significant land management control, and most Indian-owned trust lands cannot be sold, mortgaged, leased, or otherwise developed or used without a formal approval from the Department of Interior after a cumbersome process of appraisals, oversight, and multi-level review. This trust system very dramatically increases the transaction costs for any land use and is often inefficient and even demoralizing for Indian landowners (not to mention extremely expensive for the federal government to maintain).

The second problem, fractionation, is closely related to the trust status issues. Fractionation refers to the fact that many individually owned Indian trust lands (often called allotments) are now jointly owned by many, many co-owners—sometimes as many as several hundred or more. Fractionation makes any kind of coordinated decision-making among all of these co-owners practically difficult and, as an individual co-owner’s interest size diminishes, reduces the likelihood that the co-owners will so cooperate. This then increases co-owners’ reliance on the federal government’s ongoing trust management role over these lands. All of these tiny interests, in turn, overwhelm the federal trust system, as evidenced by the recent Cobell class action litigation which uncovered the federal government’s gross inability even to account accurately for all of these small interests.

The federal government has explicitly acknowledged that this fractionation problem is a direct consequence of its own failed federal policies on Indian lands. For example, historic prohibitions on will writing for Indian landowners and the modern alienation restraints on Indian trust land have all exacerbated fractionation. Implementing any kind of solution to consolidate these small interests has been exceedingly difficult. This is true both because of the general idea that it’s much harder to reassemble property than it is to disassemble it and because of a host of other political, legal, economic, and even moral issues. Possible solutions do exist, and part of the Cobell settlement funds are currently going to fund a limited buy-back program that will purchase some individual small interests from willing sellers and re-consolidate them in tribal ownership. However, the general trend has been that any such effort at a solution moves so slowly and addresses such a small proportion of the problem that new tiers of fractionation outpace any improvements, with exponentially more small interests continually being created through further subdivision of already small interests over new generations of heirs.

While these two issues—the federal trust status and the fractionated ownership patterns—are complex enough, I don’t think they give a complete picture of all of the issues going on in American Indian land tenure. For example, in a piece called No Sticks in My Bundle: Rethinking the American Indian Land Tenure Problem that I’m currently wrapping up edits on for the Kansas Law Review, I argue that a third significant problem for Indian land use is the gradual elimination over time of any informal use and possession right for co-owners of Indian trust land. Although co-owners in any non-Indian tenancy in common would have a default right to use and possess their own jointly owned land presumptively and informally and without any prior permission from their other co-owners, that is not the case in fractionated Indian lands. Modern federal regulations have recently evolved to require Indian co-owners to get permission or a formal lease from co-owners before taking possession of their own land and also to pay those co-owners rent. I think preserving some route for direct owner’s use of jointly owned land is important and valuable, even in highly fractionated properties, and as noted, I am writing about this more here.

In addition, in another piece I’m currently writing and calling Emulsified Property, I am exploring the problem of uncertain and sometimes overlapping jurisdictional authorities within Indian Country as it relates to land use. This piece explores new dimensions of these property-related jurisdictional issues, but at a high level, the fact is that modern Indian reservation are uniquely plagued by a mind boggling array of unsettled, case-specific, or otherwise unresolved jurisdictional questions. Part of this stems from the fact that most reservations include not only Indian-owned trust lands but also fee lands, which might be owned by non-Indians, Indians of another tribe, tribal citizens, or the governing tribe itself. The state or local government is likely to assert jurisdiction at least over the non-Indian fee properties, but where that state and local jurisdiction ends, and when and if it overlaps with tribal or federal jurisdiction as well, turns on a complex balancing of multiple factors, depending on the type of jurisdiction being asserted. It continually shocks me (and my research assistants) how many unresolved questions there are in terms of who governs what in Indian Country. In my property law class, we often talk about the importance of certainty in property rules. So many of our social and economic institutions rely on having clearly established, easily communicated entitlements and responsibilities with respect to a given thing. In Indian law, there is often very, very little of that certainty.

This just scratches the surface of the American Indian land tenure paradigm, but it is already easy to see why land use is such a challenge in Indian Country. Despite significant reserved lands and natural resources, Indian people suffer some of the worst poverty in the United States.

II. Why It Matters

Now for my plug for why I think more of us should be engaging in this important work around Indian property and land use. Of course, immediately and most importantly, there is the compelling problem of justice and fairness for indigenous people, who suffer the consequences of these failed property systems most directly. The Harvard Project on American Indian Economic Development has found repeatedly that Indian people having the power and the liberty to make their own decisions with respect to their resources and their futures is the best and most effective solution to the persistent problems, including persistent poverty, in Indian Country. In many respects, it is the law that stands most in the way of this, and it will take legal minds to dismantle the current ineffective system. And legal minds who are uniquely interested in the transformative potential of property institutions are especially well suited to begin this task.

On another practical note, the problem of American Indian land tenure also matters economically for all of us. The federal government has acknowledged again and again that it using (wasting) incredible resources continuing to maintain this broken property system.

However, as land use legal scholars, there are other important reasons to work in this rich area. I believe a sustained and careful understanding of these unique Indian property institutions, and the evolution of these property relationships through various federal land reforms over time, can help us address property and land use challenges not only in Indian Country but in other venues as well. Other scholars have sometimes analogized to Indian land tenure issues for this kind of purpose, but that work has sometimes lacked a real detailed and deep understanding of how complex Indian land tenure issues actually are. However, with more careful analysis, there could be very fruitful comparative work. Let me give just two immediate examples, both of which I'm just beginning to work on.

First, the co-ownership institutions in Indian Country are unique, but the fractionation (or heir property) issues are not. Paying attention to the default co-ownership rules for individually owned Indian lands can help us learn about and address co-ownership challenges in other settings—such as the role of default co-tenancy rules in balancing flexible use arrangements with land preservation strategies for at-risk communities. It can also inform property theory and practice on how co-ownership institutions can best be designed to promote coowner cooperation and efficient use of resources more generally, how anticommons properties actually work, and what methods are most useful to re-aggregate overly fractionated property rights.

Second, I am also excited about how learning from indigenous land planning practices across multiple potential stakeholder jurisdictions within a given reservation (i.e., local municipalities and county governments, state governments, federal governments, and the tribe itself) may translate to inform other work on moving land use planning more generally to more regional, cross-jurisdictional models. Cooperation among multiple levels of government is a persistent challenge in efforts to plan more broadly on a regional, resource-based, or ecosystem level, and yet almost any natural resources or planning person would tell us that this is the kind of decision-making we must do. These kinds of jurisdictional conflicts are being addressed at the reservation level on an ongoing basis, and work on indigenous planning may teach us a lot about how we can plan across jurisdictional boundaries in wider settings. (This is not to suggest that there is a broad literature on indigenous planning or land use issues within reservation legal settings that already exists. There is not. However, for anyone looking to start to review the literature, I recently read an interesting dissertation on comprehensive planning on American Indian reservations and on the Oneida reservation in Wisconsin specifically by Dr. Rebecca Webster, a former law school classmate of mine, that provides a nice place to start and can be found here.) The challenges of planning within a reservation are different and, in some ways, arguably even more complex than the challenges of regional planning generally. Notably, within reservation boundaries, jurisdictional uncertainty may increase concerns about any decision that would jeopardize a future case for asserting jurisdiction, and there are long conflicted histories between neighboring sovereigns. Still, it is a comparison I hope to continue to explore.

This long post only barely skims the surface of all the rich and fascinating land use issues at play in American Indian land tenure. Please consider this an invitation to reach out any time for further discussions on this subject. I would love to continue to engage with more colleagues in this critical subject area and to build more critical learning connections across subject areas and disciplines.

Thanks again for the opportunity to discuss this and other issues here this month.

Greetings from Canada where most of the water flows north and there is no Canadian equivalent to the Fifth Amendment. Arguably the biggest difference in land use law between Canada and the U.S. is that we have no constitutionally protected property rights in Canada. Of suprise to many of you and, indeed, to many landowners in Canada, this approach to land use regulation allows provincial and local governments to restrict virtually all use of land without compensating the property rights holder for loss of land value as long as the regulation is in the public interest. As Justice Cromwell of the Supreme Court of Canada reasoned in Mariner Real Estate Ltd. v Nova Scotia (Attorney General), (1999) 177 D.L.R. (4th) 696, 178 N.S.R.(2d) 294 (NSCA) when he was a judge of the Nova Scotia Court of Appeal in a judgment that thoroughly canvassed this area of law (at paras. 41-42):

These U.S. and Australian constitutional cases concern constitutional limits on legislative power in relation to private property. As O'Connor, J. said in the Unites States Supreme Court case of Eastern Enterprises v Apfel 118 S. Ct. 2131 (U.S. Mass. 1998), the purpose of the U.S. constitutional provision (referred to as the "takings clause") is to prevent the government from "...forcing some people alone to bear public burdens which, in all fairness and justice, should be born by the public as a whole." Candian courts have no similar broad mandate to review and vary legislative judgments about the appropriate distribution of burdens and benefits flowing from environmental or other land use controls. In Canada, the courts' task is to determine whether the regulation in question entitles the respondents to compensation under the Expropriation Act, not to pass judgment on the way the Leiglature apportions the burdens flowing from land use regulation.

In this country, extensive and restrictive land use regulation is the norm. Such regulation has, almost without exception, been found not to consitute compensable expropriation.

However, the principle that a government or expropriating entity must pay compensation when expropriating an interest in property is alive and well in Canada. Its foundation rests in the royal perogative, powers bestowed on the Crown or government from the common law, and the common law principle that unless a statute explicitly provides, it is not to be construed as taking away property without just compensation (Attorney General v DeKeyser's Royal Hotel [1920] A.C. 508 H.L.). As a common law principle for which the courts have set a high bar when testing whether regulatory behaviour equals regulatory or de facto expropriation. The claimant must prove that:

1. The legislation or government action must so restrict a landowner's enjoyment of property as to constitute confiscation an interest in property; and

2. That interest in property must be acquired by the Crown (government).

It is the second part of the test that is the hardest to meet. Courts have found that simply benefitting Crown land such as a park is not sufficient to prove acquisition by the Crown.

In many provinces this common law rule is codified in a modified form in provincial land use law. For example, sections 914 of the Local Government Act in British Columbia and 621 of the Alberta Municipal Government Act state that no compensation will be paid for changes in the value of land caused by specified decisions made under a land use bylaw or permitting function. It is only when regulation takes away virtually all incidents of private ownership that the regulation will be found to be improper. The precise wording in British Columbia under s.914 is:

(1) Compensation is not payable to any person for any reduction in the value of that person's interest in land, or for any loss or damages that result from

(a) the adoption of an official community plan or a bylaw under this Division [zoning and other development regulation] or the issue of a permit under Division 9 [development permit] of this part,

***

(2) Subsection (1) does not apply where the bylaw under this Division rstricts the use of land to a public use.

These regulatory or de facto expropriations are few and far between in Canada. Although we hear about successfully argued "takings" cases in the U.S. courts, in Canada a court has never found land use regulation by a local government to result in a regulatory expropriation for which compensation is owed. See Mariner Real Estate Ltd. v Nova Scotia (Attorney General) 1999 CanLII 7241 (NSCA) for an excellent discussion of this area of law, and Canadian Pacific Railway Co. v Vancouver (City) [2006] 1 SCR 227, 2006 SCC 5 for the most recent Supreme Court of Canada discussion in the municipal land use context. Courts have ruled that significantly curtailing development on land that is environmentally sensitive, freezing development, development moratoria, and requirements to plant a vegetated buffer adjacent to a watercourse to protect a drinking water source do not require compensation.

The cases where courts have awarded compensation for loss of an interest in property centre around federal or provincial regulation that essentially prohibits an otherwise existing lawful activity or prevents access to a property right. Several cases in British Columbia award compensation for mineral rights that the provincial government rendered inaccessible upon creating a provincial park [R v Tener [1985 1 SCR 533; Casamiro Resource Corp. v British Columbia (Attorney General), 1991 CanLII 211 (BCCA)]. The classic case is Manitoba Fisheries v The Queen [1979] 1 SCR 101 where the court found a de facto expropriation by the federal government when it enacted legislation that created a monopoly in favour of a Crown corporation dealing with a freshwater fishery that removed all economic viability, including the goodwill, of one business.

Before I seal your view of Canada as the quiet socialist neighbour to the north ("What? No constitutionally protected property rights?") I must add that in practice land use regulation by local governments works much the same in Canada as in most parts of the U.S. Zoning typically awards development potential or development rights, and once an application is submitted to a local government that zoning and other regulations vest. Few local governments attempt to curb growth in any comprehensive way. There is little coordination at a regional scale about where new development will occur, and most cities are challenged with revitalization of a formerly industrialized water front or downtown core that has to compete with the big box periphery. Proposals for a slight increase in residential density in existing neighbourhoods result in an eight hour public hearing, and there is, of course, no accounting for municipal bad taste in what was kind of development council believes is in the public interest. Although we have somehow resisted building freeways through most of our urban centres and do have a few somewhat successful provincial growth management or agricultural land protection law in place (more on that this month), the local politics of land use law often favours individual property rights.

If we conducted a poll I would be willing to wager that most Canadians and, in particular, municipal elected officials believe that compensation is owed if development "rights" are taken away by regulation. Most intersting is the fact that the Canadian law of regulatory expropriation has remained unchanged since land use regulation came into vogue yet it is popularly trumped by the law of eminent domain from the U.S. Perhaps telecommunications law has more impact on land use than land use regulation itself.

Many of the exciting conservation easement cases (yes I did say "exciting conservation easement cases") come up in the context of facade easements. I think facade easements just sound sketchy questionable to many of us. Someone with a beautiful historic building gets a tax deduction for agreeing not to destroy the facade of that beautiful home. My gut reaction is to object that the landowners unlikely had any plan to mar one of the aspects that likely drew them to purchasing the building. In fact, I have heard more than one landowner brag that they just got a tax deduction for doing what they were already doing. On further consideration though, we can see that there might be value to the public here. This is particularly so in an area where (1) landowner are having trouble affording the upkeep on the homes or (2) where economic pressures or a lack of other protection mechanisms put the buildings at risk. Some have argued that such restrictions always have value. That is, even if we have a landowner who was already planning to protect the building and the home is in a district where local laws prevent destruction (or require upkeep), you never know what the future holds in terms of other landowners or changing government whims so a facade easement may end up saying the parcel one day. Personally, such speculative value doesn't seem the best use of public funds when we can confidently identify so many places where conservation yields immediate results.

Scheidelman v. C.I.R. (2014 WL 2748623) decided yesterday by the Second Circuit is the latest in a saga over the deduction of a Brooklyn townhouse. In 1997, Huda Scheidelman paid $255,000 for this house in the designated Fort Greene Historic District. The district is designated as a historic district by the National Park Service and by NYC's Landmarks Preservation Commission. Under these protections, it is illegal to alter the facade without the consent of the Landmarks Preservation Commission.

In 2003, Scheidelman donated a facade conservation easement to the National Arhcitectural Trust, now renamed the Trust for Architectural Easements. The Trust's recommended appraiser valued the conservation easement at $115,000 and Scheidelman claimed a charitable deduction for that amount on her 2004 tax return.

After an audit the IRS rejected her claimed deduction as not being accompanied by a "qualified appraisal" as required by statute. The Tax Court agreed, but the Second Circuit vacated and sent the case back for a de novo review of the fair market value of the conservation easement. After doing so, the Tax Court determined that the value of the conservation easement should be $0 because it did not diminish the property value of Scheidelman's townhouse. Using the standard before and after method of appraisal, this calculation makes sense. Because other laws already restrict the property, the presence of the conservation easement doesn't change the value of the property. Of course, some may argue that the before and after method isn't appropriate and perhaps instead we should do some calculation based on value to the public but well... that's a harder number to crunch and more open to abuse. The Second Circuit just upheld the tax court's finding that the deduction had no value.

My favorite line of the Second Circuit (per curiam) opinion is the statement that conservation easements do not represent a per se reduction in fair market value and in fact may even serve to enhance property value.

Well it is that time of the year again and most of the Land Use Profs' crew is attending the Annual Meeting of the Association of Law, Property, and Society. This year, the conference is in Vancouver, B.C. and I have to say this is the prettiest location for ALPS so far.

I spoke on a riveting panel on conservation easements this morning (shocker I know) and now get to sit back and listen to co-blogger Jim Kelly's talk: “‘That Side was made for you and me’: Unauthorized Use of Vacant Property in Inner City Neighbourhoods.” In this packed room, I enjoy the fact that Jim started with a song. His presentation discussed what might be categorized as a type of self-help improvement. Here is the official abstract:

This essay explores the social function of unauthorized uses of vacant properties, both houses and lots, in inner-city neighborhoods. Underutilized properties, particularly those abandoned by their owners, present obvious opportunities for non-owners to engage in uses that may not benefit them personally and/or may (or may not) confer social benefits. From squatters and scrappers to guerilla gardeners and anti-foreclosure activists, acquisitive and expressive “property outlaws” challenge the formality and durability of land ownership claims. By looking at contemporary phenomena such as Philadelphia Green, Take Back the Land, and Indiana’s Good Samaritan Law, the essay will sort out the constructive possibilities for supporting, ignoring and actively opposing unauthorized use of vacant inner-city properties.

The panel, which focused on violence and authorized/unauthorized uses of property. I particularly enjoyed Robin Hickey's paper about whether you can take back property that others have taken from you (in fancy terms: the right to recapture). I think my property law students would be most intrigued by Abraham Bell's talk about possession (they always want to talk about the phrase "possession is nine-tenths of the law").

Sharing is an indispensable part of American property law, often mediating the harsh implications of ownership rights. Yet sharing is also a hidden component of this legal structure. In both theory and doctrinal manifestations, sharing is overshadowed by the iconic property right of exclusion. This Article argues that property law suffers a critical loss from its under-recognition of sharing because it fails to use sharing to correct distributional failures in a world of increasingly scarce resources. Sharing could be the basis for developing a rich range of outcomes in common property disputes. Instead, as described by Calabresi and Melamed in their famed article on remedies, outcomes are tagged to exclusion in the form of blanket property rules and “keep out” signs. As a result, sharing currently functions merely to create very narrow exceptions to broad rights of ownership. To correct this failure, this Article presents a model for sharing as a preferred outcome in property disputes. Sharing as an outcome is a powerful means of addressing property inequalities, limiting harmful externalities, preserving efficiency, and harnessing the extraordinary potential of outcomes in property law.

Property theorists commonly suppose that property has as its ends certain private values, such as individual autonomy and personal security. This Article contends that property’s real end is human flourishing, that is, living a life that is as fulfilling as possible. Human flourishing, although property’s ultimate end, is neither monistic or simple. Rather, it is inclusive and comprises multiple values. Those values, the content of human flourishing, derives, at least in part, from an understanding of the sorts of beings we are ― social and political. A consequence of this conception of the human condition is that the values of which human flourishing is constitutive ― property’s ends― are public as well as private. Further, the public and private values that serve as property’s ends are mutually dependent for their realization. Hence, any account of property that assigns it solely to the private sphere, categorically removed from public values, is incoherent.

Climate change poses a challenge for maintaining the stable entitlements that are basic to property law. Yet property rights can also serve as aids to climate adaptation. This essay, which was initially delivered as the Wolf Family Lecture on the American Law at the University of Florida, explores both aspects of the property/climate-change relationship. The first part of the article discusses takings issues that may arise in connection with sea level rise. The second part of the article discusses the constructive role that transferrable development rights and the public trust doctrine could play in climate adaptation, including their role in limiting takings claims.

Property rights were central to the political ideology of the founding era. The Northwest Ordinance of 1787 shows how the concept of property was part of both the liberal and the republican narratives of the revolutionary and constitutional eras. Conventional wisdom holds that property rights were key to the liberal argument, but that they must yield to the common good in the civic republican view. This Article shows that property was a key concept to both the liberal and republican ideologies at the founding by analyzing a critically important, but relatively neglected, founding document: the Northwest Ordinance.

The Northwest Ordinance -- one of the four most important American founding documents -- established governance in the unorganized territories of the new nation, and provided the blueprint for admitting new states to the union. A close reading of the Ordinance shows that it is fundamentally concerned with property rights, but is also thoroughly republican in character. It provides numerous rules about property ownership, in terms of inheritance, transactions, and political participation. It contains individual-rights precursors to the Constitution’s property clauses, including direct historical links to the Contracts Clause and the Takings Clause. It also envisions the role of property in an expanding republic. The property rights provisions in the Northwest Ordinance reflect a concern for not only individual liberty, but also for the promotion of the common good, through a virtuous society of individual property owners. The Northwest Ordinance shows that both the liberal and the republican narrative of the founding era rely on a fundamental consideration for individual property rights.

There has long been debate fluttering around about whether conservation easements are charitable trusts. A recent opinion from Wyoming has me thinking about charitable trusts and conservation easements from a different viewpoint.

In Davis Foundation v. Colorado State University Research Foundation, the Supreme Court of Wyoming examined a transfer of property from the Davis Foundation and family jointly to CSU and University of Wyoming. The working ranchland was donated to the school as a way to provide a living laboratory for students to learn ranching and to provide revenue for the programs (through ranching revenues). In the process of conveying the land, the Davis Foundation also conveyed a conservation easement over the property to The Nature Conservancy. The conservation easement purports to protect the scenic and historical resources of the property and restricts possible property uses to ranching, farming, and education.

Putting aside whether the conservation easement itself was a charitable trust (and without information about whether it was sold or donated to TNC I am not gonna make a call on that one), the court found the existence of the conservation easement integral in its analysis of whether the Davis Foundation created a trust when donating the property to the educational institutions. Basically, the schools now want to sell the land (subject to the conservation easement). If the donation was a gift to the schools, they have the ability to do with the land as they see fit (within their limits as state organizations or non-profits) BUT if it is a charitable trust, the schools actions with respect to the land are more limited. The Wyoming Supreme Court held that no trust was created. It reached that conclusion in part because of the existence of the conservation easements. The court explained that the conservation easement limited what the land would be used for, not the gift to the schools. Structures of donations like this are not unusual. We see examples in many states of landowners donating fee to one entity and a conservation easement to another. This may be particularly common where the fee is donated to a government entity. This case indicates that the presence of the conservation easement may serve as evidence that the donation did not create a trust. Of course, there are no blanket rules here and one would have to look at each conveyance to determine whether a trust was intended. I find this fascinating. If you donate parkland to a city but also put a conservation easement on the land because you don't totally trust the city, you may have made the donation look more like a gift than a trust (which may not have been your intention!).

This Essay examines the possible justification for providing less than full (fair market value) compensation for expropriation. One obvious justification applies in cases of public measures, where the burden is deliberately distributed progressively, namely, where redistribution is the desired goal of the public action or, at least, one of its primary objectives. Beside this relatively uncontroversial category, two other explanations are often raised: that partial compensation is justified by reference to the significance of the public interest, even if it is not redistributive, and that it can serve as a means for adjusting the amount of the compensation to the specific circumstances of the case. This Essay criticizes both justifications, arguing that the former is normatively impoverished while the latter affronts the rule of law. The notion of partial and differential compensation, however, can serve as a powerful tool for developing a nuanced expropriation doctrine that serves important property values, and also targets the potentially regressive effects of a uniform rule of full market value. The proposed doctrine draws careful, rule-based distinctions between types of injured property (fungible vs. constitutive) and types of benefited groups (local communities vs. the broader society).

One of the wonderful benefits of participating in the annual gatherings of the Association of Law, Property and Society is the opportunity to emgage with scholars from other countries. A 2011 panel focusing on his book Property: Values and Institutions (Oxford Univ. Press, 2011), which Dean Dagan participated in personally, was one of the best discussions of property theory that I've ever had the chance to hear.

How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.

Lee Fennell (Chicago) critiques and enhances Brian Lee's Columbia Law review article entitled Just Undercompensation: The Idiosyncratic Premium in Eminent Domain, blogged about here earlier this summer. In her concise on-line response, Just Enough, 133 Colum. L. Rev. Sidebar 109 (2013) (pdf here), Fennell moves through the positive and normative aspects of the tripartite analysis of how Fair Market Value (FMV) purportedly fails to fully compensate property owners whose interests are liquidated through eminent domain proceedings. As she lays it out in her intro:

Like other scholars, I have previously observed that the FMV measure of compensation leaves an increment of value uncompensated:

The uncompensated increment is made up of three distinct components: (1) the increment by which the property owner’s subjective value exceeds fair market value; (2) the chance of reaping a surplus from trade (that is, of obtaining an amount larger than one’s own true subjective valuation); and (3) the autonomy of choosing for oneself when to sell.

Lee argues that appropriate amounts of both subjective value and the chance of gains from trade are included in FMV, leaving only interference with autonomy categorically uncompensated in a manner that would implicate fairness concerns. This Part focuses only on the positive question of what does and does not get included in FMV, leaving the normative questions to the next Part. Part I.A considers subjective value and Part I.B turns to the last two components of the “uncompensated increment.”

Even after demonstrating, contra Lee, that existing owners' subjective attachments are not necessarily baked in to market valuations, she helps out by showing that a prevalence of rooted homeowners together with zoning-induced supply contraints might support the kind of extended sellers' market that diminishes the difference between market prices and the reservation prices of most homeowners.

This article argues that Koontz v. St. Johns River Water Management District, the most widely discussed of the Supreme Court’s takings trilogy in the 2012-13 term, represents a major, unprincipled break from prior law and casts an unfortunate pall of confusion and uncertainty over takings doctrine, partly reversing the Court’s recent, successful effort to make takings doctrine more coherent and predictable. The Court ruled that the relatively heightened standard of judicial review established by the Supreme Court for so-called “development exactions” in Nollan v. California Coastal Commission and Dolan v. City of Tigard applies both (1) when the government denies a development permit after the developer rejects a government demand for an exaction as a condition of project approval, and (2) when a permit condition requires a developer to pay or expend money to mitigate project impacts. In so ruling, the Court rejected the position that claims challenging such government orders should be evaluated under either the Court’s relatively forgiving regulatory takings analysis or deferential due process analysis. Justice Elena Kagan wrote a dissent for herself and three other justices, arguing that the case did not involve an actual demand triggering Nollan and Dolan and that the standards established by those cases do not apply to permit conditions requiring the expenditure of money. This article contends that the Koontz decision is one of the worst decisions, if the not the worst decision, in the pantheon of Supreme Court takings cases. In doctrinal terms, the majority opinion flagrantly contradicts or ignores established precedent, fails to acknowledge its departure from prior law, and does not attempt to offer any new, coherent justifications for its novel holdings. As a practical matter, the decision creates a perverse, wasteful incentive for local officials to decline to work cooperatively with developers in designing projects that make business sense and protect the interests of the community. Finally, the decision injects new uncertainty into takings law, setting the stage for future debates over the legitimacy and appropriate scope of intrusive judicial review of local land use decision-making, including whether local governments retain the authority to reject development proposals based on unacceptable project impacts without triggering stringent judicial review.

This summer, many of us conservation easement research types received emails from the Law Commission for England and Wales. The Law Commission is similar to the Uniform Law Commission here in the US in mission (researches potential legal reform and presents suggested statutory texts), but the British version is a body established by Parliament and the US version is a non-profit organization.

When considering changes to the law, the COmmission staff assemble consultation papers. The papers present research on the legal topic at issue, suggest statutory parameters and language, and solicit comments from "consultees." Anyone who visits the website and submits the form can comment, but the Commission also contacts specific people and organizations to solicit their views. There is even a form with specific questions on the issue to complete. I thought this was a very informative and interesting approach.

As you should have already gleaned from the title of this approach, the Law Commission is examining the case for introducing "conservation covenants" into the law of England and Wales. Now, while I read the consultation paper carefully and made lots of notes (several exclamation marks in the margins of this one), I just couldn't get my act together to submit comments by the June 21st deadline. While this is just a proposal and not yet even a proposed bill, there are lots of interesting things going on in this british version of conservation easements. I thought I would highlight a few of them for you here:

(1) Specific choice not to use the word easement.

(2) No tax breaks associated with donating conservation covenants.

(3) All transactions must be voluntary, so presumably that means no exactions or eminent domain-like creations. However, the Commission contemplates widespread use for offsetting schemes.

(4) Conservation covenants are much easier to terminate or modify. With holders having power to unilaterally discharge obligations. Also suggests a judicial proceeding with specific factors that the tribunal should consider in modifying or terminating the covenants

(5) leaseholders with long leases can enter into conservation covenants for the term of their lease

Plus oh so much more.The differences between the proposed law and the US laws is significant.

I'd be really interested to hear both what consultees said in response to this paper and what you would change here in the US if we were to rewrite our conservation easement laws. (I have my own little wishlist of course).

Recent large scale transnational transfers of land threaten members of rural communities in the developing world who rely for food and shelter on access to land they lack formal title to. Contrary to some of the conventional wisdom, this Essay argues that liberal property theory provides important inroads for addressing this challenge. Properly interpreted, property requires an ongoing (albeit properly cautious) redefinition of existing property institutions as well as the design of new ones, in light of changing circumstances and in response to the liberal property values of personal independence, labor, personhood, aggregate welfare, community, and distributive justice. These property values imply that the new, transnational land market must accommodate a property institution for essential resources that secures the individual and collective rights of pre-existing users. Securing these rights does not require that we reject the logic of competitive markets. Quite the contrary. One promising path for realizing these rights is to strengthen competition through properly designed auctions that ensure the members of local communities choices between outright sale offers and equity investment in local cooperatives.

In summer, I like to put aside an hour or so each work day to read various articles and books that I have stumbled across during the busy semester but lacked time to review. Today, the top of my stacks were an article from The New American and a book by Glenn Beck. It was really just coincidence that these two hit the top of my piles today, but it has made for a surreal afternoon.

First up is an article from The New American (the publication of the John Birch Society) by Tom DeWeese, entitledConservation Easements and the Urge to Rule. You know an article is gonna be good when the first sentence mentions the Green Mafia. DeWeese's piece argues that conservation easements are the biggest threat to small family farmers out there. I don't want to spend too much time on his article, because it is just so chock full of problems and errors that it would take too long. He conflates conservation easements and zoning law and seems to rest everything on one case study whose facts are unclear in his piece. My favorite line though is where he compares land trusts to commodity traders buying and selling conservation easements at a significant profit. That sentence on page 2 is where he really lost any credibility he might have had with me. While not an adherent of the John BIrch Society, I have been a vocal critic of the uses of conservation easements. It is always surprising to me when I see them attacked from the right. In many ways, they embody fundamental conservative ideals of promoting and protecting private property rights. Instead of saying landowners can freely enter into any contract regarding their land that they like (a clear libertarian approach), DeWeese seems to be suggesting that any limitation on property rights (even voluntary ones) should not be permitted. Without giving too much credence to DeWeese's writing on this, I am just generally befuddled by the lack of consistency in the property rights movement.

I wish I could also share an interview with Becky Norton Dunlop of the Heritage Foundation on Fox News from February 2010 where she amusingly asserts conservation easements are akin to eminent domain, but the clip no longer appears available.

After zooming through that little article, I picked up Agenda 21 by Glenn Beck. Wow is this a crazy book. Now I don't have cable tv (and would unlikely be tuning into FoxNews if I did), so I have a general understanding of who Glenn Beck is but haven't really seen much more than clips. This may explain why I had no idea what I was in for. I was looking for a book to give me the conservative take on Agenda 21 conspiracy. I gave a talk at the Western New York Land Conservancy earlier this summer, and the Conservancy chose not to advertise the talk in the Buffalo News for fear of Agenda 21 protesters. I am super a bit embarrassed to admit that I was unfamiliar with the conservative Agenda 21 battle cry. My take on Agenda 21 thus far is that it is pretty toothless. Lots of big ideas with little action. So I was pretty surprised to hear that some radical right groups appear afraid of it. Clearly they must fear what it symbolizes rather than what it actually does. Enter Glenn Beck. Someone told me that Glenn Beck wrote a book about Agenda 21 and it is a fast read. What that person failed to mention is that it is a 1984-esque sci fi novel set in a future where Agenda 21 has led to a dystopia. Wanna hear my secret? I kinda love it. It is completely ridiculous, of course, but a great beach read ... if you were willing to let people see you reading it in public.

Hannah Wiseman (Florida State) has posted Urban Energy, published in the Fordham Urban Law Journal, (invited symposium), 2013. The abstract:

The twenty-first century has seen important changes in the U.S. energy system, and most share a common theme: In some regions of the country, energy infrastructure is now located near human populations. As has always been the case; fuel in the form of oil, gas, sunlight, wind, water, or other energy sources must be extracted wherever it happens to be found; and humans have little control over its location. Energy companies must move to the areas of highest resource abundance and find available surface space from which to capture these fuels. Compounding this challenge is the fact that some of our most abundant remaining energy sources exist in low concentrations and are widely distributed. Sunlight and wind require thousands of acres of technology installations to be efficiently captured, and unconventional oil and gas resources exist at low densities over wide areas in shales or tight sandstone formations. As we tap these sources in ever more numerous locations, energy bumps up against certain human population centers. The city of Fort Worth, Texas, for example, now hosts thousands of natural gas wells, and San Diego has more than 4,500 solar projects. Indeed, with the rise of the Smart Grid; every American consumer could become a small source of electricity; sending electricity back into the grid from a plug-in hybrid vehicle, a solar panel or small wind turbine, a fuel cell, or battery storage. As the extraction of fuels and generation of electricity (“energy production”) become integral parts of certain population centers; the law will have to adjust; responding to land use and environmental disputes, nuisance claims, enhanced demands on local electricity grids, and concerns about equity, in terms of unevenly distributed effects. This Essay explores these new themes in energy law; investigating how certain populated areas have begun to embrace their role as energy centers; by addressing conflicts ex ante, creating systems for permitting and dispute resolution that balance flexibility with predictability, and managing the tradeoff between land-based energy demands and other needs. It also briefly proposes broader lessonsfor improving energy law, based on the piecemeal approaches so far.

Very important analysis; Prof. Wiseman (a former guest-blogger here!) has provided some of the most interesting recent scholarship on the new energy boom and land use.

Well looks like we are about half-way through the summer (depending on the schools schedules in your family). Instead of embarking on a new project this summer, I have committed myself to finish up several projects that have been lingering. One project that is oh so close to completion is a book chapter I wrote for a Cambridge University Press book that Keith Hirokawa is editing.The book is entitled Environmental Law and Contrasting Ideas of Nature: A Constructivist Approach and I think should hit bookshelves before the end of the year. Keith asked me to tackle the subject of nature versus perpetuity, with a particular emphasis on property law. I easily agreed because the topic seemed a natural one for me, but then I had trouble with it. My thesis was: perpetual static property rules make little sense in a changing world. Perfect! The problem was that Keith wanted something longer than a sentence.

As I delved deeper into these issues (and I would be hard pressed to label my approach "constructivist"), I became intrigued with thinking about why we have perpetual static tools. Now, I don't mean how they have evolved. I have written mind-numbingly boring fascinating articles about that in the past. Instead, I was intrigued with what it is about us as individuals that crafts our approach to land conservation the way that we do. In this research, I became intrigued by a few different pschological concepts. In very simple terms, we are not good at thinking about the future. First, when problems and issues are too big, our brains simplify them to make them digestible (or sometimes we just ignore them). Second, when making projections about future conditions, we tend to be overly optimistic. Layer these traits onto a policy for long-term land conservation in an era of increasing landscape changes and you start to see why we have problems. Although the chapter considers other subjects (including how current property laws fail to mesh with lessons from conservation biology), the brief psychology discussion was the most fun for me. Makes me pretty durn thankful that I work at an interdisciplinary school like Buffalo where I could just knock on the door of the psychologist (Chuck Ewing) whose office is next door to mine.

Interested in checking out the book chapter? You can find it here and the formal abstract is below. Interested in seeing what else appears in this book? A few other chapters have been popping up on SSRN as well including ones by Mike Burger, Jonathan Rosenbloom, Robin Kundis Craig, Tony Arnold, and Irus Braverman.

Property Constructs and Nature's Challenge to Perpetuity

Conservation
biology and ecology (as well as our eyes and ears) tell us that nature
is in a constant state of flux. Yet, models of land conservation focus
on preserving the present state of land in perpetuity. Legal concepts
that center on the status quo turn a blind eye to the fact that nature
is ever-changing. This conflict is illustrated by examining both
traditional property servitudes and conservation easements. These
restrictions on private land often explicitly state that they are
preserving today’s landscape in perpetuity. This chapter explores the
inherent conflict between the changing natural world and rigid legal
structures, detailing the struggles of applying principles like
resiliency thinking and adaptive management to property tools for
conservation. It also explores why this disconnect occurs including some
discussion of environmental psychology

Groundwater is a critical component of Texas water resources. Currently, groundwater accounts for 60% of all water withdrawn in the state. Historically, the largest groundwater user was the agricultural sector; however, Texas cities are also increasingly reliant on these water sources. State water demands are projected to increase 22% in the next fifty years. Many of these demands will be in the groundwater sector. In addition to increasing demand, periodic and sometimes severe droughts challenge an already stressed system. Texas’s ability to provide sufficient resources depends in large part on their effective management.

This paper evaluates the Day decision through the lens of past court decisions and legislation in an effort to understand why the court ruled as it did. Part II introduces Texas’s groundwater resources, current uses of that water, and present concerns regarding sustainability. Part III chronicles the line of cases that established capture as the common law rule in Texas. Part IV traces the history of groundwater legislation after courts established rule of capture. This legislation created a regulatory overlay on the common law rule of capture through localized groundwater conservation districts and the statewide planning process. Part V describes the process through which the Edwards Aquifer Authority came into existence and why it is different from other groundwater districts in the state in that its strict pumping cap immediately raised property rights concerns. Part VI explains how groundwater litigation shifted from right of capture limitations to questions of when ownership vests. This change was a product of increased pressure on groundwater resources caused by additional regulations and growing population demands.

Finally, Part VII presents three hypotheses regarding why the court came to its decision in the Day case despite the case law history. The first theory is that delineation of property interests is an issue reserved for courts’ authority. Another alternative is that the holding in Day was a result of a statewide shift towards the protection of private property rights above other concerns. The final proposed alternative is that the Day holding was actually an effort to define the property right in such a way as to encourage more regulation or at least limit takings claims through the expansive of correlative rights to groundwater.

Interesting and important--Texas is a huge state with a growing economy and population and an energy boom, and water is going to be a critical issue in the immediate and long-term future.